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Neil Roberts

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  1. I can understand how being a newbie you would like to use this as a learning experience, but maybe you should consider getting your learning from the law department? This appears to be a matter of contract law as to who is liable.
  2. Could you please clarify the contract language/clause that is causing your concern? I note that FAR 52.219-9(l), if included in the contract reads as follows: Only subcontracts involving performance in the United States or its outlying areas should be included in these reports with the exception of subcontracts under a contract awarded by the State Department or any other agency that has statutory or regulatory authority to require subcontracting plans for subcontracts performed outside the United States and its outlying areas. I take this to mean that contractor ISR/SSR reports should include subcontracts that "involve" the subcontractor's performance in the United States regardless of whether or not there is other work being performed by the contractor outside the United States or being performed by other subcontractors outside the United States. I believe that if such a subcontract includes performance both in the United States and elsewhere, only the involved performance in the United States seems to be required. I am not familiar with the exact reporting requirement you have in mind regarding contractor reporting funds that go to non-U.S. entities.
  3. Thanks for your view, @ji20874. What if it is a cost type contract?
  4. @ji20874, I am having different thoughts about "performance." I think that if the brooms and brushes were included in the proposed price of the work as direct costs, for example, and the value exceeds the $ threshold for a small business subcontract plan requirement, there should be a small business subcontracting plan for that work (unless the contractor was otherwise exempt) because that portion of the work is performed in the U.S. What are your thoughts?
  5. Yes. Yes. The subs G&A rate only applies to the sub.
  6. You didn't find the "fine print" included in the standard terms of your normal equipment lease?
  7. DOD scheduled a series of public hearings in 2019 following a 2019 GAO report regarding contractor financing and profit policies. See https://www.gao.gov/assets/gao-19-406.pdf
  8. @Krimz, in my industry experience, solicitation to award and supplier lead times are meaningful to a program office.
  9. You posted "How to classify technology licenses - Product Service Codes, Supply/Service, & Manufactured End Products (MEP). Is that post now resolved with you? Is your current post about the same transaction?
  10. 1. Can you offer some actual license language that might give a better sense of what it is i.e., does it include a research and development component, provide for use and transfer of technology such as know-how and materials, include language that governs rights to existing and future developed IP?? 2. I question your basis for believing it is real property. Can you explain that? 3. Can the DAU Product and Service Code Selection Tool be useful to you? See, https://www.dau.edu/tools/t/Product-and-Service-Code-Selection-Tool 4. Have you asked the program to explain its classification selection?
  11. FYI, There has been an open FAR case since 2018 to implement FAR regulation(s) for prescription and flowdown provisions and clauses based on 41 U.S.C.1906 (c)(1) which reads in part as follows: (c) Subcontracts.- (1) Definition.- In this subsection, the term "subcontract" …does not include agreements entered into by a contractor for the supply of commodities that are intended for use in the performance of multiple contracts with the Federal Government and other parties and are not identifiable to any particular contract. Not clear to me what "commodities" was intended to mean. I am not aware of any draft regulations yet. There is a similar effort going on in DFARS.
  12. See SBA final rule discussion at 81 Fed. Reg. 94246 12/23/2016. Also, award decisions by primes that take lower tier subcontract credit may include the 1st tier subcontractor planned % in making competitive award decisions.
  13. Agree not required by 52.219-9. However, some primes have been able to receive credit towards its subcontracting plan goals from subcontract awards by its subcontractors. Therefore, flowing FAR 52.219-9 per 52.244-6 (c)(2).
  14. In an attempt to answer your question about "rectifying," I offer the following relative to the DOD world: 020301. Discounts As prescribed by 5 CFR 1315.7(a), if a DoD Component is offered a discount by a vendor, whether stipulated in the contract or offered against an invoice, a DoD Component must take the discount if economically justified, but only after acceptance of the goods or services has occurred. DOD 7000.14.R, Vol 10 Ch.2, Discount Offers and Rebates/Refunds (Feb 2021) . See, https://comptroller.defense.gov/Portals/45/documents/fmr/Combined_Volume1-16.pdf
  15. h2h, the prime contractor is responsible for settling subcontracts subject to approval of the government closeout of the prime, which includes closeout of subcontracts. The way you understand it, the government has no final say so with respect to subcontracts. That is incorrect.
  16. h2h, I agree that unless there is a re-opener clause for final rates, a subcontract change notice that reflects it is the final allowable cost, is most likely not subject to later unilateral adjustment of allowable cost by the prime contractor. But, that is the risk I intended to point out...closing out a subcontract with finality ahead of government final approved rates applicable to the subcontract work, may be risky. What is the risk? The government may decide to review the subcontract during the prime contract closeout and wind up questioning the basis for such a closeout, especially if the final approved rates are available at that time. I am not aware that during the prime contract closeout process, the government is prohibited from audit or review of subcontracts that were closed by the prime ahead of government final applicable approved rates for the subcontractor. Are you saying that or something different? Perhaps the prime contractors you are familiar with "just lucked out" or were "flying below the radar" or pre-coordinated the closeout rates basis with the government determination per FAR 42.708 Quick closeout criteria.
  17. Perhaps you can elaborate how there is no risk?
  18. For DOD, see https://dodprocurementtoolbox.com/cms/sites/default/files/resources/2019-11/Contract Closeout Guidebook_20191025_Final.pdf. In particular, perhaps page 22 as follows: •Refer the matter to higher authority • Other non-contractual remedies such as inclusion of comments in Preaward Surveys or the Contractor Performance Reporting System (CPARS) • Suspend interim financing payments on other contracts • Disallow or recoup previously paid costs • Decrement bidding/billing rates • Initiate appropriate systems reviews • Maintain fee withholds • Notify the DCAA office that the contractor represents a risk for overbilling and recommend closer monitoring of interim vouchers for payment and that sampling parameters of interim vouchers be increased. After the Contracting Officer determines the reason for non-submission of final vouchers, several alternate methods exist that will enable the contracts to be closed. They include: • Unilateral Determination • Accelerated Final Voucher Preparation and Review Process
  19. I assume this was meant for cost type subcontracts. If such a prime contractor closes the subcontract applying such non-final indirect rates, it may risk not being reimbursed in the event the government approves lower final indirect rates for the subcontract. For fixed price subcontracts, final rates are not relevant to closeout of the subcontract.
  20. The DOD CUI Registry lists the laws, regulations and government-wide policies requiring DOD safeguarding of each CUI category. See, https://www.dodcui.mil/Portals/109/Documents/CUI Registry/CUI Registry PDF 18 MAY 21.pdf?ver=oY8Aux88iwaicCIJbabl8A%3d%3d. There is a Procurement and Acquisition category. I reviewed it and did not find any inclusion of DPAS related ratings (FAR 52.211-15 , FAR 11.6, 15 CFR 700).
  21. You may start your research with DOD by reviewing https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/520048p.PDF
  22. Sure, an "honest mistake" causing the situation is different than an intentional act as to the punishment and/or risk, but not as to doing the right thing, which you have said was to refrain from notifying your competitor that you are in possession of its proprietary information through no fault of your own.
  23. An article about one of the most famous cases of the time regarding proprietary information in the hands of a competitor, and the bidding process. The penalty appears to have included company suspension, taking away previous awards and criminal charges. https://www.pillsburylaw.com/images/content/2/6/v2/2654/0E71DCF8C5D6174617EC8FAB2117C197.pdf
  24. Here is the reason, Chris. You are in receipt of this and it is at a minimum competitive sensitive information you should not have, know of or use. There should be a discussion between your attorney and theirs to verify what was received and how this competition can be resolved in a satisfactory manner between the two parties and the CO. Hope this can be done. Sounds serious to me.
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